January 16, 1832 – Alabama Passes Laws Restricting Rights of the Native Tribes

When Alabama became a state in 1819, its white residents eagerly anticipated the eventual expulsion of natives in order to have access to their rich agricultural land so they could grow more cotton. Whites argued that Indians were racially inferior and incapable of land management because they viewed land holding very differently from European Americans, and besides, they simply wanted to take their land. State leaders began to insist that Indian nations were not really sovereign; therefore their land was rightfully owned by the states. To encourage Indian emigration, the federal government began offering western territory in exchange for Indian homelands. Most Cherokees refused to emigrate, however, and by the 1820s the Cherokee Nation under its leader John Ross vowed vowed it would not give up one more foot of land.

Cherokee Leader John Ross

Cherokee Leader John Ross

On this day in history, the General Assembly of Alabama enacted provisions prohibiting the Creek and Cherokee from practicing customs or making laws that conflicted with Alabama law. The provision stated, “All laws, usages and customs now used, enjoyed, or practiced, by the Creek and Cherokee nations of Indians, within the limits of this State, contrary to the constitution and laws of this State, be, and the same are hereby abolished.”

This statute was created just three years after another that effectively extended the jurisdiction of Alabama into Creek territory. The Creek Nation had repeatedly and unsuccessfully petitioned the federal government for assistance and protection.

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Creek leaders continued organizing efforts to secure their tribal lands,but the 1832 law also declared it illegal for tribal leaders to “meet in any counsel, assembly, or convention” and create “any law for said tribe, contrary to the laws and constitution of this State.” Punishment for violating this law was imprisonment “in the common jail of the proper county, for not less than two, nor more than four, months.”

The 1832 law also provided that the Cherokee and Creek could only testify in court in suits involving other Cherokee and Creek, effectively ensuring that Creeks defrauded and illegally deprived of their land by white intruders would have no recourse in the Alabama courts.

In 1832, in the decision Worcester v. Georgia, 31 U.S. 515, U.S. Supreme Court Chief Justice John Marshall ruled that individual states had no authority in American Indian affairs. President Andrew Jackson reportedly responded, reportedly responded: “John Marshall has made his decision; now let him enforce it!” While there is no proof he actually said this, members of his administration made clear that was their policy. In fact, from 1814 to 1824, Jackson was instrumental in negotiating nine out of eleven treaties which divested the southern tribes of their eastern lands in exchange for lands in the west. Many of those treaties had been made not only by using bribery, but by negotiating with members of tribes not authorized to enter into negotiations. The government of course didn’t care, as long as it got the land.

Andrew Jackson in 1824, painting by Thomas Sully

Andrew Jackson in 1824, painting by Thomas Sully

In 1830, just a year after taking office, Jackson had pushed though Congress legislation called the “Indian Removal Act,” giving the president power to negotiate removal treaties with Indian tribes living east of the Mississippi. States like Alabama tried to make staying more unpalatable, but the tribes resisted removal; by 1838 only 2,000 had migrated; 16,000 remained on their land. The U.S. government sent in 7,000 troops, forcing the Cherokees into stockades at bayonet point. They were not allowed time to gather their belongings, and as they left, whites looted their homes. They were then marched out in what became known as the Trail of Tears, in which 4,000 Cherokee people died of cold, hunger, and disease on their way to the western lands.

By 1837, the Jackson Administration had removed 46,000 Native American people from their land east of the Mississippi, opening 25 million acres of land to white settlement and to slavery.

Map of United States Indian Removal, 1830-1835.

Map of United States Indian Removal, 1830-1835.

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January 6, 1759 – George Washington Marries Martha Dandridge Custis

On this day in history, George Washington married the 26-year-old widow Martha Dandrige Custis. It was less than ten months after their initial meeting and less than eighteen months after the death of her first husband, by whom she had two children. They were married in Martha’s home in New Kent County.

Made of purple silk, these shoes are believed to have been worn by Martha Dandridge Custis during her wedding to George Washington. (Mount Vernon Ladies’ Association)

Made of purple silk, these shoes are believed to have been worn by Martha Dandridge Custis during her wedding to George Washington. (Mount Vernon Ladies’ Association)

The marriage brought George Washington the use of Martha’s immense wealth and made him one of the wealthiest men in Virginia. Martha owned nearly 300 slaves and had more than 17,438 acres of land— worth a fortune in early America (close to some three million dollars in today’s money).

At the time, Martha had, by virtue of a Virginia statute enacted in 1673, certain rights over her estate.

On a widow’s dower rights, the statute in force, enacted by the Virginia Assembly in 1673, read:

An act for establishing the dowers of widdows.

WHEREAS many doubts have arisen concerning the estates of persons dying intestate, and of what parte thereof ought to appertaine to the widdow; for cleareing whereof, Be it enacted by the governour, councell and burgesses of the grand assembly, and the authority thereof, that where persons dye intestate, the widdow shalbe endowed with the third part of the reall estate to bee equally divided as to houseing, ffenced grounds, orchards, woods, and other valuable conveniences, dureing her naturall life, and the third part of the personall estate, if there be but one or two children, but if there be any number of children more, how many soever, in that case the personall estate to be devided amongst the widdow and all the children share and share alike; and in case the husband make a will that he hath in it his power to devise more to his wife then what is above determined, but not lesse.”

[Note that the verb endow meant “to provide with a dower.”]

Because Martha’s first husband died without a will, Martha was granted a dower share – the lifetime use of one-third of the estate’s assets. This share would be held in trust for her children. The slaves working the estate were also subject to a dower-determined distribution. [From 1705 until 1792, Virginia defined slaves as real property. This is because if the slaves did not remain with the land to work it, the value of the land was diminished. See Donn Devine, “The Widow’s Dower Interest,” in Ancestry Magazine, Vol. 12, no. 5, 1 Sep 1994.)] Martha received approximately 85 slaves as part of the dower share of the Custis estate.

Martha Washington as a Young Woman

When Martha remarried, another principle of law came into effect: coverture, which defined the legal status of woman following marriage. Under the doctrine of coverture, the husband and wife became a single unit for property purposes, with the husband having complete control over most of the property of either person. Whatever personal effects a woman brought into marriage, including clothing, furniture, or money, became the property of her husband. (See Dorothy A. Mays, Women in Early America: Struggle, Survival, and Freedom in a New World, Calif.: 2004, p. 91.) On the other hand, whatever real estate the wife brought into the marriage could not be sold or mortgaged without the wife’s consent. (Courts tried to ensure that the wife gave over such consent with her own free will.) However, the husband had the use his wife’s land and slaves, and could dispose of the income they produced in any way he wished. Moreover, the wife’s interest in dower real estate was limited to a life estate, not a fee simple interest. But this meant that while Washington could control Martha’s dower wealth, he didn’t actually own it (in fee simple) and could not sell it. Martha’s one-third was “his” property only for the duration of Martha’s life.

George Washington as a Young Man

[As Joseph A. Ranney explains in “Anglicans, Merchants, and Feminists: A Comparative Study of the Evolution of Married Women’s Rights in Virginia, New York, and Wisconsin,” 6 Wm. & Mary J. Women & L. 493 (2000), in the agricultural state of Virginia, power resided almost exclusively in ownership of land and of the labor needed to work the land. Retention of land holdings was the key to preserving wealth and power. Thus, because planters who had only daughters faced the prospect that at their death the family lands would effectively pass to the daughters’ husbands, Virginia laws were designed to keep landed wealth in the family of the daughter rather than of the husband.]

Further complications ensued for the Washingtons. Martha’s dower slaves intermarried with George’s slaves. Because legal status was traced through the female, all children of dower mothers became dower slaves, but children of dower fathers did not. George did not have the strength to do away with slavery in his own household while he was alive, but he did have a sense of its injustice, and refused to break up families when selling slaves. Thus, he could not (would not) sell any mixed dower families. In his will, he designated that all of his slaves be freed upon his wife’s death, but he had no power to dispose of any of the many dower slaves.

Thus, it is perhaps too glib to assert that Washington gained a fortune by marrying Martha Custis; the reality is more complicated. He did indeed get the use of her dower land and its fruits while she was alive. Martha furthermore was now totally dependent on George because of coverture. She had one major protection by law: the doctrine of necessities, whereby “a married woman had the right to be maintained in a manner commensurate with her husband’s social status.” (Marylynn Salmon, The Legal Status of Women, 1776-1830.) But this could be redefined as “bare necessities” if the husband squandered her assets. Divorce was also not readily available as an option; especially in the South, divorce laws were quite conservative, “probably related to slavery: it was difficult for lawmakers to grant women absolute divorces because of their husbands’ adulterous relationships with slaves.” (ibid)

As far as we know, Martha had none of those problems, although like other of the Founding Fathers, George did spend overmuch, and ran up considerable debt. But Martha had her property, come hell or high water.

Mellon Collection, National Gallery of Art "The Washington Family" by Edward Savage, painted between 1789 and 1796, shows (from left to right): George Washington Parke Custis, George Washington, Nelly Custis, Martha Washington, and an enslaved servant (probably William Lee or Christopher Sheels).

Mellon Collection, National Gallery of Art “The Washington Family” by Edward Savage, painted between 1789 and 1796, shows (from left to right): George Washington Parke Custis, George Washington, Nelly Custis, Martha Washington, and an enslaved servant (probably William Lee or Christopher Sheels).

December 18, 1971 – Alaska Native Claims Settlement Act Signed Into Law

When the United States acquired the territory of Alaska in 1867, the treaty conveyed title to all public lands not held as “individual property.” As explained in a summary of the background of Alaskan native land claims issues, House Report No. 92-523, dated September 28, 1971:

The lands used by the ‘uncivilized’ tribes were not regarded as individual property, and the treaty provided that those tribes would be subject to such laws and regulations as the United States might from time to time adopt with respect to aboriginal tribes.”

In the Organic Act for Alaska of May 17, 1884, 23 Stat. 24 Congress provided that Natives “should not be disturbed in the possession of any lands actually in their use or occupation or then claimed by them, but that the terms under which such persons could acquire title to such lands were reserved for future legislation by Congress.”

25 Largest Tribal Groupings Among American Indians and Alaska Natives

25 Largest Tribal Groupings Among American Indians and Alaska Natives

House Report No. 92-523 stated:

The Committee found no principle in law or history, or in simple fairness, which provides clear guidance as to where the line should be drawn for the purpose of confirming or denying title to public lands in Alaska to the Alaskan Natives. The lands are public lands of the United States. The Natives have a claim to some of the lands. They ask that their claim be settled by conveying to them title to some of the lands, and by paying them for the extinguishment of their claim to the balance.

As a matter of equity, there are two additional factors that must be considered. When the State of Alaska was admitted into the Union in 1958, the new State was authorized to select and obtain title to more than 103,000,000 acres of the public lands. These lands were regarded as essential to the economic viability of the State. The conflicting interests of the Natives and the State in the selection of these lands need to be reconciled. The discovery of oil on the North Slope intensified this conflict. A second factor is the interest of all of the people of the Nation in the wise use of the public lands. This involves a judgment about how much of the public lands in Alaska should be transferred to private ownership, and how much should be retained in the public domain.”

Prior to the Native Claims Settlement Act, Congress had not acted on titles claimed by Alaskan natives. Moreover, as a history of this act reports, laws enacted regarding Indian lands were at first considered not to be applicable to Alaska Natives.:

This view was upheld in numerous opinions rendered by the courts, the Attorney General and the Department of the Interior during the last quarter of the nineteenth century. . . . This concept of the Alaska natives’ Federal status was gradually revised, however, so that by 1932 the Interior Department declared the Alaska natives to have the same status as Indians in the rest of the United States and thus to be entitled to the benefit of and . . . subject to the general laws and regulations governing the Indians of the United States to the same extent as are the Indian tribes within the territorial limits of the United States.”

The Alaska Statehood Act basically kept the situation regarding aboriginal claims in status quo.

On this day in history, Public Law 92-203, the “Alaska Native Claims Settlement Act,” (ANCSA) was signed into law by President Nixon. The law,the largest land claims settlement in U.S. history, was enacted by Congress to settle the claims of Alaska’s native Indian Aleut and Eskimo population to aboriginal title to the land they occupied for generations. By this act, Alaska Natives gained title to 44 million acres of historically used land in Alaska. The U.S. government paid $962.5 million in “compensation” so that Natives would not claim any title to the remaining land in the state. (Natives would be paid $462,500,000 over an eleven-year period from funds in the United States Treasury, an additional $500,000,000 from mineral revenues received from lands in Alaska, and from the remaining Federal lands in Alaska, other than Naval Petroleum Reserve Numbered 4.) Funds were assigned to 12 Native regional corporations and over 200 local village corporations. A 13th regional corporation headquartered in Seattle was later created for Alaska Natives who no longer resided in Alaska.

ancsa

Furthermore, the act allowed for reserving easements on lands which will be conveyed to Alaska Native Village and Regional Corporations in order to allow public access to public land and water. Federal Regulations, 43 CFR 2650.4-7, provide guidelines to be used in reserving easements in conveyance documents.

As of 2013, some 14.3% of Alaska’s population identified as American Indian and Alaska Native, alone or in combination, the highest share for this race group of any state.

You can read the entire text of the act and legislative history here.

November 8, 1772 – Birthdate of William Wirt, Influential U.S. Attorney General

William Wirt was born on this day in history in Bladensburg, Maryland. He later moved to Virginia and was admitted to the Virginia bar in 1792.

In 1807, President Thomas Jefferson asked him to be the prosecutor in Aaron Burr’s trial for treason. His principal speech was four hours in length, and garnered him a great deal of praise.

In 1816 he was appointed U.S. Attorney for the Eastern District of Virginia, and in 1817 President James Monroe named him the ninth Attorney General of the United States, a position he held for 12 years, through the administration of John Quincy Adams, until 1829. He has the record for the longest tenure in history of any U.S. attorney general.

William Wirt, 9th United States Attorney General in office November 13, 1817 – March 4, 1829

William Wirt, 9th United States Attorney General in office
November 13, 1817 – March 4, 1829

In March 1831, Wirt appeared before the Supreme Court on behalf of the Cherokee Nation, in the case known as Cherokee Nation v. Georgia (30 U.S. 1). The state of Georgia had been doing everything it could to get the Cherokees to leave, short of causing them to die (that would come later in the decade). The Cherokees wanted to plead their cause with the Supreme Court, but needed to come up with a way to get there, since no one thought Georgians would allow a test case through the state courts. Wirt came up with the idea of claiming that the Cherokees were a foreign nation, which would qualify for the Court’s original jurisdiction.

In a brief Wirt filed with the Court, he argued that Georgia’s laws regarding the Cherokees were “repugnant to the constitution, laws, and treaties of the United States.” “This ancient people,” he contended – “a nation far more ancient than ourselves . . . present themselves to you as a separate, sovereign state. They complain that a state of this union has invaded their rights of person and of property, by a species of legislative warfare, in violation of the treaties, the constitution, and the laws of the United States.”

While Justice John Marshall openly expressed sympathy for the Cherokee’s plight, he ruled against them, refuting the idea that the Cherokees constituted a foreign nation. But Wirt went back to Marshall in 1832 to argue Worcester v. Georgia (31 U.S. 515), also a case questioning the constitutionality of the laws of Georgia, but with a much more acceptable underlying premise. This time Wirt won his case, but the Cherokees lost the war, when both Georgia and the United States refused to support the decision.

Wirt went on to run for President in 1832, a nominee of the Anti-Masonic party. In the subsequent election, Wirt carried Vermont with seven electoral votes, becoming the first candidate of an organized third party to carry a state.

Wirt practiced law until his death in 1834.

November 6, 1860 – Lincoln Elected as the 16th President of the United States and His Career As a Lawyer Before the Presidency

On this date in history, Lincoln received 180 of 303 electoral votes and about 40 percent of the popular vote in a five-way election. He was the first Republican President.

We know a great deal about Lincoln after he took office. But what about his career prior to the presidency?

In the book An Honest Calling: The Law Practice of Abraham Lincoln by Mark E. Steiner, the author attempts to remedy that omission.

The opening premise of this book is quite interesting. Steiner posits that Lincoln’s legal career has been largely ignored by historians for three reasons. One is that it is difficult for non-lawyers to navigate through the esoteric language characterizing legal practice. More importantly, Steiner suggests that because of “the positive cultural image of Lincoln and the negative cultural image of lawyers in American society,” most writers prefer to ignore or minimize the importance of Lincoln’s law career. Third, “the image of Lincoln the lawyer clashes with the images of Lincoln as frontier hero” – the homespun “rail splitter” whose simplicity metamorphosed into brilliance after he took office.

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Lincoln received a license to practice law in all Illinois state courts in September, 1836. In April of 1837 he moved to Springfield, Illinois to practice law with John Todd Stuart. By 1839 he was practicing law on the Illinois Eighth Judicial Circuit, and that December he was admitted to practice law in the U.S. circuit courts.

Biographers who mention Lincoln’s law career have treated it anecdotally, referring only to those cases that might “build Lincoln’s image or inflate his reputation.” There have been documentary problems as well; it has only been since 2000 that a state-of-the-art electronic collection of Lincoln’s legal writings has been available. Thus, “the quality and quantity of literature on Lincoln’s law practice suffers in comparison to the writing on other aspects of his life.”

Steiner attempts to remedy this gap by a detailed review of Lincoln’s legal practice including an overview of what law practice was like for an antebellum lawyer, how Whigs in particular approached the practice of law, a review of sources Lincoln used to learn and interpret the law, and a representative sampling of cases from Lincoln’s practice.

Steiner finds from the evidence that Lincoln was quite a competent lawyer; so much so, that when he began to do appellate work, he often found himself fighting (and even losing!) the battle against the precedents he himself had set in the lower court.

Abraham Lincoln, circa 1846

Abraham Lincoln, circa 1846

Lincoln did not pick and choose his cases according to any moral standard whatsoever; “Lincoln was willing to represent any side in a dispute, regardless of the argument that he would have to present.” (Steiner argues that (a) antebellum Whig lawyers valued law and order more than any particular value; and (b) they were paid so badly they could not afford to be choosy in any event.) That included representing slaveholders attempting to establish property rights to African-Americans. The only sort of work Lincoln didn’t like was representing out-of-state clients. These clients didn’t know Lincoln, didn’t defer to his judgment, and operated on a quickened pace and impersonal style that was not compatible with Lincoln’s way of doing things.

To me, the discussion of antebellum law on slavery is the most interesting section of the book. Free states refused to recognize slavery; if you brought a slave into the state for domicile (rather than for purposes of transit), the free state considered the slave to have been manumitted. A free state was under no obligation to uphold laws it deemed repugnant from other states. (Fugitive slaves were a separate matter, because the issue of runaways was governed by a federal statute applicable to all the states. The Dred Scott case concerned yet a third issue, dealing with the right of slaves to sue in federal court.) Lincoln defended a man who claimed his slave was “in transit” even though they had been in a free state for two years. Lincoln lost, and the slave Jane was declared free.

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Other chapters deal in depth with cases of Lincoln’s relating to debt, railroad entitlements, slander, estates, and taxation. Whenever possible, Lincoln preferred to settle. When he had to try a case, he had a good record for winning. He was respected for honesty and integrity, but would not refrain from using a technicality to win a case. He was dedicated to apply the rule of law wherever and whenever he could, and that is what he determined to do, both as a lawyer and later as the president.

This book makes some interesting points about chronicling of Lincoln’s life, and about the decisions of historians to include or omit certain aspects of Lincoln’s identity from the record. It describes his law practice very well; it in fact includes many more legal details than I suspect most readers would care to know. On the other hand, its explanation of legal positions taken by the various states on slaves is important enough to merit inclusion in other histories.

Abraham Lincoln, 1858

Abraham Lincoln, 1858

Does this book help to answer the question “who was Lincoln and what was he really like?” Yes, a bit, in the way that knowing what a person does “at work” helps to provide clues to who he or she is. At the very least, it covers aspects of Lincoln’s character and personality that deserve to be summarized in more general treatments of Lincoln’s life. It doesn’t make for the fascinating reading that most books on Lincoln do, but it does represent a lot of solid research, and information that will be very appealing to a specialized audience.

An Honest Calling: The Law Practice of Abraham Lincoln by Mark E. Steiner published by Northern Illinois University Press, 2006

November 3, 1868 – Ulysses S. Grant Elected President

On this day in history, Ulysses Grant and Schuyler Colfax defeated Horatio Seymour and Francis Blair, Jr. for the offices of President and Vice President of the United States.

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The Democratic party made explicit appeals to racism in this election, with Seymour and Blair’s motto being: “This is a White Man’s Country; Let White Men Rule.”

Former Ohio Congressman Samuel S. Cox, touring the country for the Democratic ticket, asked:

Is there no pride in your blue eyes, light hair, white faces, and intelligent brains?”

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Cox, however, was not without “charity” about blacks, having said in a speech to Congress in 1862:

Neither do I blame the negro altogether for his crime, improvidence, and sloth. He is under a sore calamity in this country. He is inferior, distinct, and separate, and he has, perhaps, sense enough to perceive it. The advantages and equality of the white man can never be his….”

In any event, General Grant won the election, and it was the last presidential election where racism was the explicit slogan and policy of the Democratic Party.

1868 Presidential Election Results

1868 Presidential Election Results

October 23, 1973 – “Saturday Night Massacre”

In June 1972, five men associated both with the CIA and with the Committee for the Re-Election of the President (i.e., President Richard Nixon) broke into the Democratic National Committee’s offices in the Watergate Complex in Washington, D.C. They were discovered by a security guard, and a scandal erupted.

The Watergate Complex from the air

The Watergate Complex from the air

That August, President Nixon announced that John Dean, who served as White House Counsel for United States President Richard Nixon from July 1970 until April 1973, completed an investigation into the Watergate case and found no involvement with anyone in the White House.

John Dean while serving as White House Counsel

John Dean while serving as White House Counsel

Nevertheless, on February 7, 1973, the U.S. Senate created a Select Committee on Presidential Campaign Activities to begin its own investigation. Various Nixon administration officials, including Dean, who made a deal to cooperate with investigators, alleged that Nixon’s innermost circle had orchestrated both the break-in, the cover-up of the break-in, and other illegal activities.

Honoring a promise that he had made during his confirmation hearings, Attorney General Elliott Richardson appointed lawyer Archibald Cox to serve as a special prosecutor to investigate the Watergate case if his own nomination garnered approval.

Elliot Richardson is sworn in as Secretary of Defense in February of 1973.

Elliot Richardson is sworn in as Secretary of Defense in February of 1973.

Cox demanded that Nixon produce tape recordings he had made in the Oval Office during the time period in question, and Nixon refused, claiming “executive privilege.”

On the night of October 23, Nixon ordered Richardson to fire Cox. Because Richardson had promised Congress he would appoint Cox, Richardson refused, and resigned in protest. Nixon then ordered Deputy Attorney General Ruckelshaus to fire Cox, and Ruckelshaus also refused and resigned. The Solicitor General, Robert Bork, agreed to fire Cox, in what became known as the “Saturday Night Massacre.”

Former Watergate Special Prosecutor, Archibald Cox in 1983. Lucian Perkins -- The Washington Post

Former Watergate Special Prosecutor,
Archibald Cox in 1983.
Lucian Perkins — The Washington Post

Congress was so outraged it introduced bills of impeachment, charging Nixon with abuse of power and obstruction of justice. Meanwhile, Cox’s successor, Leon Jaworski, followed in Cox’s footsteps, much to Nixon’s chagrin. The Supreme Court weighed in as well, and on July 24, 1974, Chief Justice Burger announced the Court’s decision in United States v. Nixon (418 U.S. 683, 1974) requiring Nixon to produce the Oval Office tapes. However, there was an eighteen-minute gap in the transcripts, never found, that Nixon claimed resulted from an error by his secretary.

But what had not been deleted was damaging enough, and on August 8, 1974, Nixon became the first U.S. President to resign from office. Vice President Gerald Ford assumed the presidency, and on September 8, 1974, he pardoned Nixon for any crimes associated with the Watergate affair.

U.S. President Richard M. Nixon as he announces his resignation on television  (Photo by Hulton Archive/Getty Images)

U.S. President Richard M. Nixon as he announces his resignation on television (Photo by Hulton Archive/Getty Images)